Citation Nr: 0620306
Decision Date: 07/13/06 Archive Date: 07/21/06
DOCKET NO. 03-26 205 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Jackson,
Mississippi
THE ISSUE
Entitlement to a rating higher than 10 percent for facial
acne.
WITNESS AT HEARING ON APPEAL
Appellant
ATTORNEY FOR THE BOARD
Lauren A. Morris, Legal Intern
INTRODUCTION
The veteran, who is the appellant, served on active duty from
September 1973 to August 1975.
This matter is before the Board of Veterans' Appeals (Board)
on appeal of a June 2003 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Jackson,
Mississippi.
In January 2004, the veteran testified before the undersigned
Acting Veterans Law Judge. A transcript of the hearing is of
record.
In November 2004, the Board remanded the case for further
development. As the additional development has been
completed, the case has been returned to the Board for
appellate review.
FINDING OF FACT
The service-connected facial acne does not affect 20 to 40
percent or more of the face and does not require systemic
therapy such as corticosteroids or other immunosuppressive
drugs; it has none of the characteristics of disfigurement;
superficial unstable or painful scarring is not shown; and
limitation of function is also not shown.
CONCLUSION OF LAW
The criteria for a rating higher than 10 percent for facial
acne have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West
2002); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7800, 7803,
7804, 7805, 7806, 7828 (2005).
Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA amended VA's duties to notify and to assist a
claimant in developing information and evidence necessary to
substantiate a claim. 38 U.S.C.A. §§ 5103(a), 5103A;
38 C.F.R. § 3.159.
Duty to Notify
Under 38 U.S.C.A. § 5103(a), VA must notify the claimant of
the information and evidence not of record that is necessary
to substantiate the claim, which information and evidence VA
will obtain, and which information and evidence the claimant
is expected to provide. Under 38 C.F.R. § 3.159, VA must
request that the claimant provide any evidence in the
claimant's possession that pertains to the claim.
The VCAA notice requirements apply to all five elements of a
service connection claim. The five elements are: 1) veteran
status; 2) existence of a disability; (3) a
connection between the veteran's service and the disability;
4) degree of disability; and 5) effective date of the
disability. Dingess v. Nicholson, 19 Vet.App. 473 (2006).
The VCAA notice must be provided to a claimant before the
initial unfavorable adjudication by the RO.
Pelegrini v. Principi, 18 Vet. App. 112 (2004).
The RO provided both pre- and post-adjudication VCAA notice
by letters, dated in April 2003 and December 2004. The
notices informed the veteran of the type of evidence needed
to substantiate the claim for increase, namely, evidence that
the disability had increased in severity. The veteran was
also informed that VA would obtain VA records and records of
other Federal agencies, and that he could submit other
records not in the custody of a Federal agency, such as
private medical records, or with his authorization VA would
obtain any such records on his behalf. He was asked to
submit evidence, which would include that in his possession,
in support of his claim. The notices included the general
effective date provision for increase, that is, the date of
receipt of the claim.
As for content of the above VCAA notices the document
substantially complied with the specificity requirements of
Quartuccio v. Principi, 16 Vet. App. 183 (2002) (identifying
evidence to substantiate a claim and the relative duties of
VA and the claimant to obtain evidence), of Charles v.
Principi, 16 Vet. App. 370 (2002) (identifying the document
that satisfies VCAA notice); of Pelegrini v. Principi,
18 Vet. App. 112 (2004) (38 C.F.R. § 3.159 notice); and of
Dingess v. Nicholson, 19 Vet.App. 473 (2006) (four of the
five elements of service connection).
As to the remaining element under Dingess, the VCAA notice
did not include information on the degree of disability, but
as this is the issue on appeal, the notice necessary to
obtain the benefit was provided in the statement of the case
in accordance with 38 U.S.C.A. § 7105(d). For this reason,
any defect with respect to rating the disability was cured
and the veteran's claim has not been prejudiced.
To the extent that part of the VCAA notice came after the
initial adjudication, the timing of the notice did not comply
with the requirement that the notice must precede the
adjudication. However the procedural defect has been cured
because the veteran had a meaningful opportunity to
participate effectively in the processing of the claim as he
had the opportunity to submit additional argument and
evidence and to address the issue at a hearing. For these
reasons, the veteran has not been prejudiced by late timing
of part of the VCAA notice. Mayfield v. Nicholson, 19 Vet.
App. 103 (2005), rev'd on other grounds, No.05-7157 (Fed.
Cir. Apr. 5, 2006).
Duty to Assist
Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to
assist the claimant in obtaining evidence necessary to
substantiate the claim. The veteran has been afforded a VA
examination to determine the current level of severity. As
the veteran has not identified any additional evidence
pertinent to the claim, not already of record, and as there
are no additional records to obtain, the Board concludes that
no further assistance to the veteran in developing the facts
pertinent to the claim is required to comply with the duty to
assist. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.
REASONS AND BASES FOR FINDING AND CONCLUSION
Increased Rating
Disability ratings are determined by applying the criteria
set forth in VA's Schedule for Rating Disabilities (Rating
Schedule), which is based on the average impairment of
earning capacity. Separate diagnostic codes identify the
various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4.
Where there is a question as to which of two ratings shall be
applied, the higher evaluation will be assigned if the
disability more closely approximates the criteria required
for that evaluation. Otherwise, the lower evaluation will be
assigned. 38 C.F.R. § 4.7.
The degree of impairment resulting from a disability is a
factual determination in which the Board focuses particular
attention on the current severity of the disability.
Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Although
the veteran's entire history is reviewed when making
disability evaluations, the present level of disability and
most recent evidence are of primary concern in a claim for
increased rating. Schafrath v. Derwinski, 1 Vet. App. 589,
592 (1995); 38 C.F.R. § 4.1.
The veteran has a history of facial acne as reflected in
service medical and VA records, and he has been in receipt of
a 10 percent disability rating under Diagnostic Code 7806
since 1987.
In January 2004, the veteran testified that has itchy and dry
skin.
On VA examination in December 2004, it was noted that the
veteran's skin condition was fairly stable with
intermittently recurrence, mostly during the summertime, but
the condition cleared up without significant treatment. The
pertinent finding was no active facial acne. Only one
percent or less of the face appeared to be affected at the
time of examination, and no disfigurement was noted. The
skin texture appeared normal except for minimally increased
pigmentation on both cheeks. There was no evidence of
underlying soft tissue damage and the affected area was less
than 12 square inches. Color photographs of the face
accompanied the report of examination. The examination was
limited to the face. The veteran has other skin problems,
affecting other bodily areas, which are not considered to be
part of the service-connected disability.
Under Diagnostic Code 7806 (eczema), the criteria for the
next higher rating, 30 percent, are involvement of 20 to 40
percent of the exposed area affected, or systemic therapy
such as corticosteroids or other immunosuppressive drugs
required for a total duration of six weeks or more, but not
constantly, during the past 12-month period.
The records shows that on VA examination in 2004 only one
percent or less of the face appeared to be affected, which
does not meet the criteria of 20 to 40 percent of the exposed
area affected, which is consistent with the color
photographs. Also, systemic therapy such as corticosteroids
or other immunosuppressive drugs have not been required for
treatment. For these reasons, the criteria for a 30 percent
rating under Diagnostic Code 7806 have not met.
As for other applicable diagnostic codes, the criteria for
the next higher rating, 30 percent, under Diagnostic Code
7828 (acne) are deep inflamed nodules and pus-filled cysts,
affecting 40 percent or more of the face and neck. Again by
VA examination in 2004, only one percent or less of the face
appeared to be affected, which does not meet the criteria of
40 percent or more of the face and neck under Diagnostic Code
7828.
The criterion for a compensable rating for facial
disfigurement under Diagnostic Code 7800 is one of eight
characteristic of disfigurement. The eight characteristics
of disfigurement are: a scar 5 or more inches; a scar at
least one-quarter inch wide; the surface contour of scar
elevated or depressed on palpation; a scar adherent to
underlying tissue; skin hypo-or hyper-pigmented in an area
exceeding six square inches; skin texture abnormal
(irregular, atrophic, shiny, scaly, etc.) in an area
exceeding six square inches; underlying soft tissue missing
in an area exceeding six square inches; or skin indurated
and inflexible in an area exceeding six square inches. The
facial acne does not have any of the characteristics of
disfigurement based on length, width, or area of involvement.
And there is no evidence of underlying soft tissue damage or
of a surface contour that elevates or is depressed on
palpation. As none of the eight characteristics of
disfigurement are shown, the criteria for a compensable
rating under Diagnostic Code 7800 have not been met.
In addition, there is no evidence of superficial, unstable
scarring, or superficial, painful scarring on examination to
meet the criteria for a compensable rating under Diagnostic
Codes 7803 or 7804, respectively. And there is no evidence
of limitation of function to warrant a compensable rating
under Diagnostic Code 7805.
Lastly, to the extent the veteran has asserted that his
service-connected facial acne has interfered with employment,
in an exceptional case where the schedular rating is found to
be inadequate, the case may be referred to the Under
Secretary for Benefits or the Director of the Compensation
and Pension Service for consideration of an extraschedular
rating. The governing norm in an exceptional case is that
the case presents such an exceptional or unusual disability
picture with such related factors as marked interference with
employment or frequent periods of hospitalization as to
render impractical the application of the regular schedular
standards. 38 C.F.R. § 3.321(b)(1). The evidence of record
does not present such a disability picture that is so
exceptional or unusual that it renders impractical the
application of the regular schedular standards. Accordingly,
the Board does not find that the case should be referred for
an extraschedular rating.
For the foregoing reasons, the Board finds that the
preponderance of the evidence is against a disability rating
in excess of 10 percent for facial acne, and the
benefit-of-the doubt standard of proof does not apply. 38
U.S.C.A. § 5107(b).
(The Order follows on the next page.)
ORDER
A rating higher than 10 percent for facial acne is denied.
____________________________________________
GEORGE E. GUIDO JR.
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs